Jurisprudential Inquiries between Tradition and Discourse

Abstract

This paper argues that jurisprudential inquiries can be profitably analysed as oriented towards either the explanatory paradigm of discourse or the explanatory paradigm of tradition. The first part of the paper offers a map of the discipline of jurisprudence in accordance with the above two different explanatory orientations. It does so at two levels: 1) ontological (pictures of law); and 2) epistemological (pictures of legal work). In the second part the paper, the tension and interaction between the explanatory paradigms of discourse and tradition in the work of five different theorists is considered: 1) Elizabeth Mertz's anthropological linguistics; 2) Nicola Lacey's revision of the relationship between analytical jurisprudence and descriptive sociology; 3) Roger Cotterrell's call for a sociology of legal ideas; 4) Neil MacCormick's concept of law as institutionalised normative order; and 5) Patrick Glenn's notion of a legal tradition. Finally, in the third part, the paper addresses certain implications of the analysis of jurisprudential inquiries by reference to the above two explanatory orientations for comparative and international legal scholarship. The two explanatory orientations (tradition and discourse) are offered as one of many paradigms thanks to which one can recognise the limitations of any one picture of law or legal work. At the metaphilosophical level, the analysis of the paper indicates that there are three options available to jurisprudence, i.e., 1) seek to provide a picture of law or legal work on the basis of one explanatory orientation; 2) maintain pluralism about concepts of law or legal work given their limitations in light of their explanatory orientations; or 3) attempt to combine the elements of both explanatory paradigms in a unified account. The paper argues that insofar as jurisprudence seeks to provide normative resources for responses to certain challenges in the public sphere, it ought to go for option two, namely, for maintaining pluralism about concepts of law and legal work.